NEW YORK — You may have seen my warning in Friday’s edition regarding a PSA that was released by the Ad Council, under the auspices of FEMA, extolling the virtues of the emergency alerts the public can now receive on their cell phones. A great idea. Worthy of getting the word out. Even if the PSA promotes a service available on cell phones.

Only one problem. The PSAs (there are several, and they are also available for television) use the EAS two-tone alert tone as part of the message.

Why is this a problem? Well, FCC regulation 11.45 states that the EAS codes AND THE EAS TWOTONE ALERT TONE, CANNOT be used for any purpose unless directly associated with an actual EAS message or an EAS test. I believe the FCC fine for using the tone outside an EAS message starts around $10,000.

I, along with numerous other persons around the country, sent out the alert NOT to air this PSA. I even sent notes to the SBE and the NAB.

Around 4:00 pm on Friday, May 31, a notice was released by the FCC granting FEMA a waiver for one year to utilize the EAS two tone alert in their PSAs. It is apparently OK to air this PSA. I’m wondering how you prove it is the one produced by FEMA and is legal.

I then received an email from someone at FEMA that stated, “See, we aren’t off our rockers. This notice was supposed to come out before the release of the PSA.”

Three letters came to mind. W. T. F.

The PSA, as released, clearly violates 11.45. But now, because a governmental agency wants to use it to toot their horn over the new thing they have, it’s OK to use it – providing you are using the “legal” PSA.

Excuse me for being a jackass here. But for years we, as broadcasters, have had to avoid using EAS codes or tones in our on air productions – even something that may be mistaken for EAS codes or tones – because the codes could accidentally set off a station’s EAS equipment and we don’t want to desensitize the public to the fact that, when they hear the two tone alert, they should listen because chances are something bad is about to happen. But it’s OK to play the tones now because FEMA wants to show off their new toy? What about creative copy writing and creative audio production? Do we have to play the EAS two tone alert in the PSAs? Can the public really be that stupid they can’t figure it out if we paint them a picture – the same way we’ve been doing it since forever?

The FCC Docket and Order notes that the public needs to be educated regarding the new Emergency Warning because they are “startled and confused when they first hear the warning go off.” Um – has anyone ever thought to educate the public and tell them BEFORE this was added to their phones? I can relate to this.

After my phone insisted that there was an update available and it was going to do it whether I liked it or not, I allowed the phone to update. Later that day, sitting quietly in my office, I had the living hell scared out of me when my phone emitted the EAS two tone alert at full volume – to tell me it was going to rain!! I actually bolted to the master control room thinking EAS has gone off! I had no clue this was in the update that morning (thank you, Android, for telling customers what the updates contain!). I was further annoyed that: 1) I was not allowed to say “I don’t want this on my phone” and, 2) I cannot shut off a Presidential activation. Very frankly, if EAS is activated on a national level, I will most likely be in a broadcast facility – and having to shut my phone up will be a distraction when I need to become quickly focused. Never mind that I paid for my phone out of my own private funds and I pay the bill monthly out of my funds – and I’m forced to have this application running that I do not want. But, that is another column.

I am involved with an independently syndicated program, Ron Ananian: The Car Doctor. We play PSAs during the local break holes so stations that may not have any local spots to play can simply sit on the network. This would be a great PSA to add to rotation. There is no way I’m going to do that. Why? Because the waiver for the PSA lasts one year. What if a station recorded this weekend’s show and decided to keep it as an emergency show? And they ended up playing it back one year and one day later? I can guarantee none of us would recall what PSAs are in the show – and if it’s an emergency situation, the station won’t be checking ahead of time. And they will receive a Notice of Apparent Liability (NAL) for violation of 11.45. I’m not going to risk that with our affiliates.

Additionally, let’s see a show of hands. How many of you diligently clean out the PSA area of your digital on air system on a regular basis? Yeah. That’s what I thought. What if this PSA accidentally airs after one year?

And further – what if the FCC field office in your location didn’t get the memo? That has happened many times. You will find yourself having to defend the station over the playing of a PSA that apparently is OK to play.

Hey – here’s an idea. I’d like to educate the public about what they should do when they hear the two tone alert on my station! Think the Commission will grant me a waiver to put together a promo that my station will air emergency information – and, oh, yeah, we’ll follow up on it immediately to keep you informed? First! Live and local! Probably not.

I have heard from many stations that will not air this PSA – and I agree with that. Many have said that they will play this PSA on their web stream, as many listeners are reached on station’s web streams via mobile devices. I think that is a great idea.

I’m sorry. First, the timing on this was terrible. First the PSA, then the waiver? And the FCC field offices will need to determine if you are actually airing the legal PSA? Does one hand know what the other is doing? Call me skeptical, but I smell trouble a-brewing.

If FEMA wants to educate the public, they should go back into the production room and produce a set of PSAs that do not use the two tone alert – just like we would have to. There is no need to use that alert signal in a PSA – FEMA produced or not.

Yes, the public needs to be educated as to what this alert signal is. There are other ways to do that – starting with telling them that, when their phone software updates, that this is included in the update. Maybe then they won’t be startled and confused. Education. It’s a wonderful thing.

Thomas R. Ray, III CPBE, AMD, DRB is president of Tom Ray Consulting and Technical Editor of TALKERS. He can be phoned at 845-418-5065 or emailed at tomray@tomrayconsulting.com. His website is www.tomrayconsulting.com. Meet Tom Ray at TALKERS New York 2013 on Thursday June 6.